Albany Hearing

Introductory Remarks from Floyd Abrams

New York Commission on Public
Access to Court Records
May 16, 2003 Public Hearing - Albany
Introductory Remarks from the Chair

Good Morning. I am Floyd Abrams, and I have the honor
to chair the New York Commission on Public Access to
Court Records. With me today are the distinguished
members of the Commission, including Court of Appeals
Judge Victoria Graffeo, New York County Clerk Norman
Goodman, Stephanie Abrútyn, Elizabeth Bryson,
Hugh Campbell, William Farley, Thomas F. Gleason, Richard
Griffin, Victor Kovner, David Miranda, Charles Sims,
and Gary Spivey.

Chief Judge Judith Kaye empanelled this commission
last year to advise the New York State court system
on a difficult and vexing issue that arises out of
the technological advances of recent years. Judicial
records are, as a general proposition, public. As a
general matter of state and federal constitutional
law, they must be public. What Justice William O. Douglas
said 56 years ago remains true today: “A trial
is a public event. What transpires in the courtroom
is a public event.” The same is true of most
court records.

The new advances in technology — the Internet,
in particular — now make it easier to disseminate
public information than ever before. But the glories
of the Internet — the ease of availability of
information, the 24/7 availability of information,
the unconstrained nature of who may receive the information — also
raise potential problems. Can there be too much availability
of public records? Should Internet access lead us to
take care about what finds its way into public judicial
records in the first place?

Announcing the formation of this Commission, Judge
Kaye put our task this way: “In keeping with
society’s increasing reliance on technology,
the court system will begin to make case files available
electronically within the next few years. But while
providing greater access to this information, we also
must be diligent to protect a litigant’s right
to privacy. We recognize that court records can contain
sensitive information, such as social security and
home telephone numbers, tax returns, medical reports
and even signatures. I have charged this commission
with the hard task of examining any potential pitfalls,
weighing the demands of both open access and individual
confidentiality, and making recommendations as to the
manner in which we should proceed.”

Judge Kaye’s formulation makes it clear that
the important questions that this panel has been asked
to consider are not easily answered. The purpose of
today’s hearing, and the hearings that will follow
in Manhattan and Buffalo, is to receive and consider
the views of interested individuals and organizations
from around the state and, given the prominence of
New York, around the country. No state has yet fully
come to grips with these issues. We hope to make a
contribution by doing so.

To that end, the notice for these hearings set forth
several questions that go to the heart of this Commission’s
mandate:

1. In light of the recognized public interest that
is served by having court case records available for
public inspection, are there any privacy concerns that
should limit public access to those records on the
Internet?

2. Should any information that is currently deemed
public be subject to greater restrictions if made available
for public access on the Internet by the Unified Court
System? For example, are there particular privacy concerns
that outweigh open access considerations regarding
the disclosure on the Internet of an individual’s
Social Security identification number, credit card
numbers, bank or investment account numbers or other
personal identifying information?

3. If such personal identifying information should
not be made available on the Internet, how should that
information be eliminated from electronic/Internet
availability?

4. If there are any limitations or restrictions to
be placed on the dissemination of court records on
the Internet, what role should be played by the courts,
by attorneys or by others?

5. Should the public be charged a fee to access court
case records on the Internet?

6. What information should a member of the public need
in order to search case records on the Internet? Should
a search require the name of a litigant (or litigants)
or should searches be available by topical inquiry
or statutory reference?

We are looking forward to hearing from each of today’s
speakers on these important questions. As we do so,
I think it important to point out at the outset that
not all court case records are public. Some examples
of records that are not publicly available under New
York State law without a court order making them so,
are set forth in the hearing notice. They include records
in matrimonial matters, child custody proceedings,
pre-sentencing reports and memoranda in criminal cases,
documents containing HIV-related information or the
identity of victims of sexual offenses, and other documents
that are filed under seal under New York law. Our mandate
is not revisit the laws and policies that provide for
confidential treatment of these materials. It is not
proposed that these materials will be made available
on the Internet or otherwise.

This is the first of three hearings that the Commission
will hold this spring. There are many interested people
and groups that will not speak today, but will appear
at subsequent hearings in New York City or Buffalo.
I mention this simply to note that the points of view
you will hear today, which are important to the Commission,
will be supplemented by comments from other interested
groups, who may have a very different take on these
issues than what you hear today. At later hearings,
we expect to hear from — among others — the
New York State Bar Association, the New York State
Trial Lawyers’ Association and victims’ rights
advocates. The Commission will make transcripts of
all three of the hearings available on its website.